An outside salesman's job required the use of his personal vehicle. His employer provided him with a gas card and a monthly car allowance. Also, the employer maintained accounts with certain repair establishments, but the salesman paid for all repairs from his monthly allowance. The salesman's job required flexible hours, but he typically worked seven to nine hours a day.
In the early morning hours, the salesman traveled to meet crews of rig workers as they came off their shifts. Ten hours later, after he met with the workers, he drove to a car repair shop to have a tension pulley installed in his car. While he was waiting in the shop for the repair to be completed, his chair collapsed, and he was injured. Shortly before the accident, he was treated for low back complaints. After the accident, the salesman received further treatment from an orthopedic surgeon and a chiropractor.
The workers' compensation judge found the salesman was injured in an accident that arose from and was in the course of his employment. The WCJ found the repairs to the car arose from his employment even though he was not making a sales call at the time. The salesman was awarded temporary total disability benefits and past medical expenses. The employer appealed, asserting that the accident did not occur in the course of and arise from his employment.
Was the WCJ correct in awarding benefits to the salesman?
A. No. The salesman's workday ended before the accident.
B. No. The risk that the salesman's chair would collapse was no greater as a result of his employment than a member of the general public.
C. Yes. The employer involved itself in the transportation of the salesman as an incident to the employment agreement.
How the court ruled: C.
The Louisiana Court of Appeal said the salesman's activities were analogous to cases involving the going and coming rule and held that he was entitled to benefits. Mayes v. Deep South Chemical, Inc., No. 11-91 (La. Ct. App. 06/01/11).
The court explained that an exception to the going and coming rule exists where an employer involved itself in a worker's transportation as an incident to the employment contract, either through furnishing a vehicle or payment of expenses, or where wages are paid for time spent traveling. The court said this case met those conditions. The employer paid a car allowance and directed the provider of vehicle repair services.
The court said that traveling and having one's car repaired at the employer's direction for that travel are analogous. The car represented an essential tool of the worker's work, and the employer mandated the worker's action.
The court also decided that the salesman was not entitled to attorney's fees and that the employer's appeal was not frivolous.
A is incorrect. The court explained that although the accident occurred over 10 hours after the salesman began his workday, he embarked on his journey to repair his car immediately after meeting with the rig workers. This would have been within his normal working hours.
B is incorrect. The court explained that the accident arose out of and in the course of employment.
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July 7, 2011
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